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Sepesy v. Archer Daniels Midland Co.

OPINION FILED JUNE 30, 1981.

CHARLOTTE M. SEPESY, INDIV. AND AS ADM'R OF THE ESTATE OF JOSEPH ANDREW SEPESY, DECEASED, PLAINTIFF-APPELLEE,

v.

ARCHER DANIELS MIDLAND COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. JAMES A. HENDRIAN, Judge, presiding.

MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

This appeal arises as a result of the second trial of this personal injury action. On December 18, 1972, plaintiff's decedent, Joseph Sepesy, a truck driver, was waiting to unload the grain carried by his truck, in a line of trucks at defendant, Archer Daniels Midland's west grain dump. Sepesy was standing between his truck and the truck directly in front of his truck. Both trucks were on a "ramp" with a slight incline, and the truck in front apparently rolled back, in an attempt to engage its gears and move forward, and crushed Sepesy between the trucks, causing his death. The lawsuit is based upon defendant's responsibility arising out of ownership and control of the land on which the accident occurred.

The first trial ended with a directed verdict for the defendants at the close of plaintiff's case. (The first trial also involved the driver of the other truck who was not a party to the second trial.) On appeal, this court held that a jury question existed as to whether the ramp created an unreasonably dangerous condition and thus, whether the defendant breached its duty to Sepesy, a business invitee. (Sepesy v. Fuller (1978), 59 Ill. App.3d 56, 375 N.E.2d 180.) The supreme court subsequently remanded the case to the appellate court to consider the questions of contributory negligence and proximate causation. (Sepesy v. Archer Daniels Co. (1978), 71 Ill.2d 615.) The appellate court issued a supplemental opinion finding jury questions existed on both issues. (Sepesy v. Fuller (1979), 66 Ill. App.3d 1053, 384 N.E.2d 1378.) The second trial, subject to the instant appeal, concluded with a jury verdict in favor of plaintiff in the sum of $351,793.

The testimony relevant to the determination of this appeal follows. According to police officers who investigated the accident, there were no eyewitnesses to the incident. Carl Hobson, a truck driver of 25 years, was at the Archer Daniels Midland (ADM) plant, loading his truck on the date of the accident. Someone came over to Hobson and asked him to come and identify a truck driver who was "down." Hobson went over to the ramp and saw Sepesy lying face down in front of his truck, without his coat on. Sepesy appeared unconscious to Hobson.

There is no testimony as to the act of any person or of any occurrence immediately prior to, and at the time of the injury. It appears that Sepesy's truck was on the ramp in line to unload grain and Hobson went into the truck and noticed that the ignition was off, the brakes were on, and Sepesy's coat was inside the truck. At that time there was no truck in front of the Sepesy truck. According to Hobson, the weather at the time was snowing and was wet and the ramp had snow, water, and mud on it. Hobson stated that truck drivers know that trucks which operate by a clutch might roll backwards before going forward when engaging their gears on a ramp. Hobson expected that Sepesy also knew that fact. One of the things that would determine how much a truck would roll back would be the traction on the ramp. Hobson could recall no devices on the date of the accident to prevent trucks from rolling backwards on the ramp in bad weather, although Hobson admitted the concrete surface of the ramp provided a good basic traction for trucks. Hobson stated that he had unloaded grain at the ADM plant on the average of two times per week, during an unspecified number of years. Hobson had seen Sepesy unloading grain on previous occasions, with his truck on the ramp, but did not recall ever seeing Sepesy stand between two trucks parked in line.

Marshall Shutt, a grain dealer and owner of numerous grain elevators and trucks, testified that Joseph Sepesy was one of the drivers in his fleet, and Shutt testified to Sepesy's wages. Shutt stated that Sepesy was a good truck driver, and that during the 8 to 10 years of his employment with Shutt, Sepesy had made 300 to 400 trips or more to the ADM plant where the accident occurred.

Three other witnesses testified that Sepesy was a good, careful truck driver. One of the three, a truck driver, gave his opinion that the ramp to the dump where the accident occurred had a very slight incline.

Two expert witnesses testified. Plaintiff's expert testified that he examined the ramp and made calculations by which he determined that the grade or incline of the ramp was approximately 8 percent or degrees. He also gave his opinion that the ramp and incline were unsafe for truck drivers. Defendant's expert also examined the ramp and estimated that the incline portion of the dump was 30 feet long. He determined, based on accurate measurements by a surveyor, that the percentage of incline or the grade on the ramp was 4.19 percent. This evidence was not in the record on the prior appeal. In the opinion of defendant's expert, the ADM dump and ramp met the usual and customary standard engineering practice. The two experts disagreed over which, if any, books, manuals and statutes established safety standards for the construction of ramps to grain dumps. The experts were also in conflict over the need and practicality of "safety devices" on the ramp.

The jury returned a verdict in favor of plaintiff in the sum of $351,793. The trial court entered judgment on the verdict. Defendant's post-trial motion which requested, alternatively, judgment notwithstanding the verdict, a new trial, or remittitur, was denied by the trial court, from which denial defendant has appealed.

Plaintiff's brief states that she does not contend that the construction of the ramp with an incline of 4.19 percent created an unreasonable risk. It is contended:

"The unreasonable risk is found in the defendant's construction of the ramp without any regard for the safety of the persons using the ramp and failing to apply the proper safety standards."

Defendant's principal contention on appeal is that, under the circumstances, it owed Sepesy no duty to provide safety devices on the ramp or to warn Sepesy of the dangers inherent in the ramp, under the facts of this case, based on the rule announced in the Restatement (Second) of Torts, sections 343 and 343 A (1965). All parties agree that Sepesy was a business invitee. There is further agreement that Illinois has adopted the position of the Restatement (Second) of Torts, sections 343 and 343 A, with regard to the duty owed to business invitees by owners and possessors of property. Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465.

• 1 Plaintiff asserts that our prior opinions in this case dispose of defendant's contention, and that we are bound by our prior opinions in this case which constitute "law of the case." As recently stated, "under the `law of the case' doctrine, this court is bound by the particular views of law announced in our prior opinion in a case, unless the facts presented require a different interpretation." (Bradley v. Howard Hembrough Volkswagen, Inc. (1980), 89 Ill. App.3d 121, 124, 411 N.E.2d 535, 537.) In the previous decisions in this case, it was held that jury questions were present and that it was proper for the jury to determine (1) whether the ramp was a dangerous condition, (2) whether Sepesy was contributorily negligent, and (3) whether proximate causation existed linking defendant with Sepesy's injury.

In the first appeal, however, the plaintiff was appealing from a directed verdict in defendant's favor, and in the case at bar defendant is the party appealing. This particular situation was discussed thoroughly by the court in Noe v. Chicago Great Western Ry. Co. (1970), 130 Ill. App.2d 36, 41-42, 263 N.E.2d 889, 893, where the court stated:

"The points now raised by the defendant in the instant case were not adjudicated in our prior opinion. Nowhere in that opinion did we consider the contention now raised by defendant that the ...


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